Wednesday, December 5, 2012

Should Phone Carriers Be Required to Save Texts?

Courtesy of DamnYouAutoCorrect

CNET is reporting that law enforcement officials throughout the country are asking Congress to mandate how long cellular phone providers store text messages.

Understandably, people from both sides of the aisle are crying about the invasion of privacy and how the country is continually transforming into a police state.  Dear readers, I am hereto calm your fears and let you know that all will be well in the world no matter what happens.

Here's the rules of the game as they exist right now.  Phone companies keep your call records for as little as 6 months and as much as 7 years depending on the provider.  These records are who you call, who calls you, how long the call lasts, and the pedigree information you gave to sign up for the phone.

To obtain copies of these records the police must seek a subpoena.  The police bring the case to the district attorney's office, where it is screened by an ADA.  The ADA decides if there is enough to open a file and begin a formal investigation where subpoenas are required.  The subpoena is not reviewed by a judge for probable cause prior to sending it.

Text messages, voicemails, emails, and other phone content is not included in this subpoena.  In New York, a person is considered to have greater privacy in this information so the court requires the police to seek a search warrant.  This is a sworn document or testimony requiring the police to lay out their evidence to the judge and show reasonable cause to believe they will find some evidence of a crime in those materials.  If there is, the judge will grant the search warrant.  If not, the judge does not grant the warrant.

According to the CNET article, 6 billion text messages are sent a day.  That is an incredible amount of data that requires tons of storage, which is why most companies do not save any text data past a few days.  The police and prosecutors are at a disadvantage due to this.

If we find out about text messages at the time the crime occurs, say a DWI accident where the driver was texting, we can send a letter to the cell phone provider demanding they preserve the text messages.  This does not give us the right to look at the messages, but puts the company on notice to save the messages from deletion so that we can make an application for a search warrant.

What about the case that takes months to develop?  A murder conspiracy that gets solved through DNA testing or any other case where suspects don't arise for months or years after the crime?  Well, in current times, those text messages are gone forever unless some person saved them on their phone.  Even if they have probable cause to believe there is evidence of the crime in the text messages, the police cannot retrieve possibly devastating evidence.

Every criminal statute and privacy invasion law comes down to balancing.  Does the need for the statute or law outweigh the invasion of privacy?  Should phone companies be required to keep text messages in case they are needed to investigate a crime?  Or is this a step in the direction of big brother that is ripe for abuse?  Every law that is passed that expands police powers, it is open for abuse.  But Congress figures the overall benefits of finding and prosecuting those responsible for heinous crimes outweighs the possibility of abuse.  Is this the same situation?  Or as a society do we consider our texts more sacred and private than the records of who we call?

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